Do I get my legal costs back if I win a lawsuit in the Supreme Court of Nova Scotia?

If you are the successful party, you can generally expect to get an award for a portion of your legal costs. The starting principle is that the court aims to have the losing party make a ‘significant contribution’ to the winning party’s legal costs. . Getting the other side to actually pay you back is a topic for another day.

17 In National Bank Financial Limited v. Potter, 2008 NSSC 213, [2008] N.S.J. No. 213, Warner, J. cited The Law of Costs, (2nd ed.) by Mark M. Orkin (2007) Canada Law Book (looseleaf service) Chapter 2. He noted:

Orkin identified five purposes for costs awards. Paramount is the principle of indemnification. The others are: to encourage settlement, deter frivolous actions and defences, discourage unnecessary steps that unduly prolong the litigation, and to facilitate access to justice. — at para. 17.

Civil Procedure Rule 77 is the Rule for Costs

Exactly how much costs are awarded is dependant on Rule 77 of the Nova Scotia Civil Procedure Rule which is expanded on in relevant case law. Rule 77 says that at the end of the day, it is up to the judge to determine a costs award that would attempt to do justice as between the parties based on the circumstances of the case. However, Rule 77.06 indicates that costs, “unless a judge orders otherwise, be fixed by the judge in accordance with tariffs of costs and fees determined under the Costs and Fees Act.”

Tariff A is the Default at the End of an Action in Nova Scotia

Tariff A is generally used at the end of an Action. The starting point is determining an ‘amount involved’. The ‘amount involved’ is usually pretty obvious if the lawsuit was for damages or a debt collection. If the lawsuit is for something like use of an easement or adverse possession where no dollar value is calculated, it can be impossible to come up with a fair ‘amount involved’. In those cases, a different analysis is applied.

Costs can be Increased or Decreased Based on Rule 77.07

Once the amount involved is determined, it is fit into the Tariff A grid in the Act and the base amount of costs is determined. An additional $2,000 per day of trial is added to this amount. Depending on the circumstances, the judge can increase or decrease the amount of costs. For example, if the opposing party was deliberately difficult and made the matter take longer and cost more than it would have if they met their obligations under the Rules the Judge could move to Scale 3 on the Tariff grid, or citing CPR 77.07 could increase costs even more if the Judge felt it would do justice between the parties.

Things the Judge can consider in increasing the amount of the costs award Under Rule 77.07 of the Nova Scotia Civil Procedure rules

(a) the amount claimed in relation to the amount recovered;

(b) a written offer of settlement, whether made formally under Rule 10 - Settlement or otherwise, that is not accepted;

(c) an offer of contribution;

(d) a payment into court;  

(e) conduct of a party affecting the speed or expense of the proceeding;

(f) a step in the proceeding that is taken improperly, abusively, through excessive caution, by neglect or mistake, or unnecessarily;

(g) a step in the proceeding a party was required to take because the other party unreasonably withheld consent;

(h) a failure to admit something that should have been admitted.

Meritless Actions will Attract Significant Costs Awards in Nova Scotia

In the very recent case of Turner-Lienaux v. Townsend Justice Ann Smith of the Nova Scotia Supreme court summarized this concept in the first paragraph of the case.

“A party who pursues a vexatious and abusive Application in Court or other Court proceeding against another party should suffer the consequences of their meritless actions when costs are assessed. A party is free to spend their own money to pursue meritless and vexatious proceedings, but when they drag another party with them to Court to respond to such allegations, they should expect to make a significant contribution to that party's legal costs. That is only fair and the only way that the Court can attempt to do justice between the parties in setting costs.”

Costs at the Nova Scotia Court of Appeal

At the Nova Scotia Court of Appeal level, the calculation of costs is more concrete. Unless there are circumstances that warrant, the successful party can expect an order for 40% of the costs awarded at the Supreme Court level. To learn more about Appealing to the Nova Scotia Court of Appeal read our blogs on this topic.

How can I appeal a decision of the Supreme Court of Nova Scotia?

The Judge Got it Wrong – Appealing to the Nova Scotia Court of Appeal

 By: Dianna M. Rievaj – Managing Lawyer

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